EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, April 14, 2008

The Ice Pick Murderer: Ohio Court Finds Statements By Victim Admissible In Roommate Murder Trial

Jury selection is expected to begin today in the trial of an Ohio woman accused of stabbing her roommate in the head with an ice pick, and those jurors selected will likely hear testimony concerning the victim's statements identifying the defendant as her assailant.  Fifty-four year old Sandra Matthews-Johnson is accused of stabbing her roommate, Ottie Marie Tomlinson, below the left ear with an ice pick while the two fought in the home that they shared.  The ice pick broke off inside Tomlinson's head, so medics did not find the wound until after the victim was taken to an area hospital.  Matthews-Johnson was initially charged with assaulting Tomlinson, but those charges were upgraded to murder after Tomlinson died from her injuries a month later.  Before she died, however, Tomlinson told police investigators that Matthews-Johnson stabbed her and wrote "Sandy" on a piece of paper in response to questions by the investigators about who attacked her.  Attorneys for Matthews-Johnson argued that these statements were inadmissible hearsay, but Judge J. Timothy Campbell overruled these objections, paving the way for their likely admission at trial.  This ruling was potentially correct, but also very possibly incorrect.

First, Tomlinson's statements were both hearsay under Ohio Rule of Evidence 801(c) in that they were statements, other than those made by the declarant while testifying, offered to prove the truth of the matter asserted:  that Matthews-Johnson stabbed Tomlinson.  Thus, those statements were only admissible if they met some applicable hearsay exception.  Second, pursuant to the Supreme Court's opinion in Crawford v. Washington, the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  While courts are split as to when a hearsay statement is "testimonial," most hold that a hearsay statement is "testimonial" when the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.  I think it is safe to say that any court would deem Tomlinson's statements "testimonial."

Thus, for Tomlinson's statements to have been admissible, they would have needed to meet some hearsay exception which also obviated any Confrontation Clause concerns.  First, Tomlinson's statements could have constituted "dying declarations," which the Supreme Court has implied are admissible without regard for the Confrontation Clause. See Crawford, 541 U.S. at 56 n.6.  Under Ohio Rule of Evidence 804(B)(2), statements by an unavailable declarant are admissible in a homicide or civil case if they were made by the declarant while believing that her death was imminent, concerning the cause or circumstances of what the declarant believed to be her impending death.  Obviously, the question would be whether Tomlinson believed her death was "imminent" when she spoke with the police investigators, but it would seem to me that the fact that she lived for at least a month after the attack would indicate that she did not think her death was "imminent" when she spoke with the investigators.  Of course, if Tomlinson spoke with the investigators soon before her death, it is possible that her statements were "dying declarations."

Second, Tomlinson's statements could have been admissible under the "forfeiture by wrongdoing" docrtine contained in Ohio Rule of Evidence 804(B)(6).  Under this doctrine, a declarant's hearsay statements are admissible without regard to the rule against hearsay and the Confrontation Clause when the defendant's wrongdoing prevents the declarant from testifying at trial.  Some courts have found that this doctrine applies only in the witness tampering situation where a defendant kills or otherwise renders a prospective witness unavailable after she allegedly committed the subject crime while other courts find that it also applies when the prospective witness is the victim herself.  The Supreme Court is set to decide whether the doctrine can apply in this latter scenario in Giles v. California.  That case, however, should have no effect on Ohio, which has already limited the doctrine to the first scenario on its own volition. 

The Staff Note to Ohio Rule of Evidence 804(B)(6) indicates that "the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...."  Thus, in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008), the Court of Appeals of Ohio found that the doctrine did not apply to statements made by a murder victim in the defendant's trial for her murder.  Thus, the forfeiture by wrongdoing doctrine seemingly would not apply to Matthews-Johnson's case.



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I respectfully disagree with Professor C.M.

From what I have gathered over the years from reading cases on DDs, is whether a declarant actually was dying at the time she made the statement, is not pertinent. What is, however, is whether the declarant believed she was dying. That’s what renders her statement credible.

As I wrote in a comment to another blog, a person believing she’s on death’s door does not want to leave the world with a lie on her lips.

Here, Professor C.M., says: “. . .that she lived for at least a month after the attack would indicate that she did not think her death was "imminent" when she spoke with the investigators.”

IMO, that does not necessarily follow. Persons can believe they’re dying when in fact they’re not. They can survive incidents or die from them quite some time thereafter.

If Judge Campbell’s ruling found Tomlinson believed she was dying, he was correct. The statement comes in as a DD. The declarant’s belief was determinative.

Posted by: Frank Loomis | Apr 15, 2008 8:11:00 AM

Your point is accurate. It is the declarant's belief that her death was impending, not whether her death was actually impending, that is essential to the dying declaration exception. This is why I indicated, "the question would be whether Tomlinson believed her death was 'imminent' when she spoke with the police." I used the fact that Tomlinson did not die until at least a month after the attack as evidence that she likely did not think that her death was imminent when she spoke with police, but you are correct that it is possible Tomlinson believed that she would soon die when she spoke with police even if her death was not, in fact, imminent.

Posted by: Colin Miller | Apr 15, 2008 9:26:09 AM

With due respect to the experts, their comments are irrelevant because the judge in this case is proven to do what she needs to do to get her predetermined result. The problem in our justice system is there is no device to reign in these malfeasant judges, rather they tend to be promoted up. I'm sorry but the experts pontificating will do nothing but provide diversion. The truly unfortunate thing in this case is the fact that the judge OUR court system chose to try this serious and highly publicized case is herself proven to be willing to conspire with her court reporter to change the record, conspire with an attorney to destroy evidence, conspire with or dupe the records keeper to allow evidence to be filed with a judges stamped date which pre-dated the filing by 6 weeks, to conspire with an attorney to file a transcript known to be false and much, much more! This judge appears likely to also have conspired with an appeals court commissioner (friend?)in an attempt to change the record back from what she conspired to change it to in her cover-up at trial. Many of these conspiracies appear to among many other things violate the RICOH Act. So with all due respect (there likely is little due) the die and decision were likely cast as soon as this judge was appointed. The sad thing in this and all causes is the courts have known for at least 18 months that there was a problem they chose to ignore with this tainted judge.

Posted by: Bob Mullen | Apr 26, 2008 1:49:34 AM

My mom did not do it

Posted by: michelle | Dec 31, 2011 5:01:26 PM

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